(Note: This column ran in slightly different versions at the Washington Examiner and the Advocate/Times-Picayune. What follows is a combination of the two versions, updated, as it were. The two versions are here and here, but the full combined text is below.)

At first glance, the Supreme Court’s July 1 decision on presidential immunity looked like an unwise overstatement of otherwise valid principles. At closer glance, it looks almost abominable.

If there is a future President Kamala Harris, the decision in Trump v. United States would make her frighteningly unpunishable in criminal court even for what otherwise would be massive illegalities. Fans of former President Donald Trump who today are celebrating the decision could find themselves obliterated on their own petards.

The 5-3-1 decision by Chief Justice John Roberts, with Justice Amy Coney Barrett hesitatingly concurring in part and dissenting in part while the three Democratic appointees dissent entirely, is a departure from text, original public meaning, and crucial historical referents. It lays out theories of presidential immunity that are defensible, but it pushes them so far as to be perilous. Its language repeatedly is sweeping when it should be studiously circumspect. And in one conclusion, the part from which Barrett dissented entirely, it goes beyond not just legal text but also beyond anything approaching logic.

Roberts asserts, perhaps justifiably, that there do exist some realms, “within his exclusive sphere of constitutional authority,” in which a president’s actions are “absolutely immune” from criminal prosecution. Indeed, although the word “absolute” is so all-encompassing as to be problematic, it would be hard to conceive of a situation in which a president’s use of diplomacy or military abroad could, under any cogent understanding of the Constitution, be subject to conviction in U.S. criminal courts.

Alas, Roberts and four of his colleagues go much farther. They posit an “absolute” immunity for many actions on the domestic front as well, including any discussions or actions with regard to the Justice Department. They make no clear distinction, either, between absolute immunity for use of the military abroad compared to within U.S. borders. And they specifically say not even judges can review any use of the pardon power, which – in the broadness of the court’s language – would seem to preclude any review of what would be a ludicrous and tyrannical presidential pardon of himself.

Roberts also asserts that the president is “presumptive[ly]” even if not “absolutely” immune from any acts within even “the outer perimeter of his official responsibility.” That immunity applies unless prosecutors can prove that trying him “would pose no ‘dangers of intrusion on the authority and functions of the Executive Branch.’”

Read that again. No danger at all. And “outer” limits. While Roberts pretends that this narrowing of immunity from “absolute” to merely “presumptive” is an important distinction, in practice it is almost impossible to imagine any use of “official” powers that poses no danger even to the outer limits of a president’s authority.

Justice Sonia Sotomayor, in dissent, gives examples of what could happen if a president is presumptively out of prosecutorial reach to such a great extent: “[If he] orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.”

Roberts writes that such examples are mere “fear mongering,” but noticeably does not even try to explain why or how his reasoning would avoid those very scenarios about which Sotomayor warns. Repeat: He just brushes it aside without actually addressing it, except to propose a countervailing hypothetical.

The difference is that the dissenters explicitly explained at substantial length both why there are constitutional safeguards against Roberts’ scenario and why his scenario is flawed in terms of logic, history, and the near-constitutional explanations in the Federalist Papers. Roberts provided no such courtesy and no such explanatory marker for future courts to discern why a president would indeed be criminally prosecutable, under his decision, for such flagrant and deadly abuses of power.

Justice Barrett, in the middle, wrote the single most concisely cogent line of all: “Properly conceived, the president’s constitutional protection for prosecution is narrow.” And, in the part of her opinion that dissents from the main holding, she absolutely blasted Roberts’ truly bizarre, entirely untextual conclusion that even if a president is being tried for conduct outside the very “outer” bounds of presidential authority, prosecutors can’t discuss conduct for which he is immune as part of the evidence in their case.

If the president is being charged with bribery, for example, then of course the jury should be told what “official act” it was for which the bribe was paid.

“To make sense of charges alleging a quid pro quo,” she wrote, “the jury must be allowed to hear about both the quid and the quo.” [Italics are Barrett’s.] Under Roberts’ astonishingly grandiose assertion of presidential immunity, a jury would be denied that basic information.

Again, Roberts’ assertions can be found nowhere in the text of the Constitution itself. And unlike the few other non-textual applications of the Constitution that are nonetheless quite obviously implicit in the Constitution’s very structure – such as the “separation of powers” – the assertion of presidential immunity this broad isn’t obviously implicit, but implicit only through a few  degrees of creative extrapolation.

This isn’t a Constitution Roberts is expounding, but merely a theory. And it’s a theory that, by putting the president almost entirely above the law, is blindingly dangerous. The long view is needed: If conservatives aren’t careful, the danger one day will be turned against them.

 

 

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